W.D. Pennsylvania Institutes New Special Masters Program
The Federal Rules of Civil Procedure were amended in 2006 to address the growing complexities of electronic discovery. The Amendments brought a great amount of clarity, but five years later, many problems persist and ediscovery continues to be a challenging and expensive process. Because ediscovery is driven by technology, its rate of change far outpaces that of the Federal Rules. As a result, more local jurisdictions have begun their own initiatives to tackle ediscovery’s challenges
The latest effort is out of the Western District of Pennsylvania. On November 16, 2010, the Board of Judges approved the establishment of the Electronic Discovery Special Masters (EDSM) program to assist litigants in certain cases where ediscovery issues may arise.
When ediscovery issues arise, the court or the parties can decide to appoint an EDSM from a special pool of candidates previously approved by the court. To qualify as an EDSM, the candidates must meet specific criteria set by the court. The court’s Alternate Dispute Resolution Implementation Committee, chaired by Judge Joy Flowers Conti, developed and approved the required selection criteria which includes active bar admission, demonstrated litigation experience (particularly with electronic discovery), demonstrated training and experience with computers and technology, and mediation training and experience.
If appointed, the court will set the scope of the EDSM’s duties which may include, but are not limited to, developing protocols for the preservation, retrieval or search of potentially relevant ESI, developing protective orders to address concerns regarding the protection or confidential information, monitoring discovery compliance and resolving discovery disputes. The EDSM may also present findings of fact or conclusions of law to the court; however, these must be issued as a report and recommendation which will be subject to de novo review and opportunities for objection by the parities.
While it is still too soon to assess the effectiveness of the new EDSM program, another high-profile, local ediscovery program reported significant success in the use of discovery liaisons. The Seventh Circuit Electronic Discovery Pilot Program noted in its May 2010 report on Phase One of the multi-phase program that the participating judges “overwhelmingly felt the [program]” had a positive effect on the test cases, and “[i]n particular, the judges felt that the involvement of ediscovery liaisons required by [the program] contributes to a more efficient discovery process.” (emphasis added).
The Seventh Circuit’s findings and the basis for the EDSM program are encouraging, and reinforce the notion that many of the problems in the ediscovery process stem from a general lack of knowledge which ediscovery liaisons can provide until the bench and bar at large catch up. Time will tell if the EDSM program is successful, but in light of the consistent difficulties seen in ediscovery case law, any attempt to improve the process will likely be worthwhile.
For a complete list of the current EDSMs, visit http://www.pawd.uscourts.gov/Applications/pawd_edsm/SM_Search.cfm and click “Search for a Neutral” with all fields left blank.